The Hindu Editorial Analysis- 26th December 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Article 370 issue closed, but terror victims need closure

Why in News?

While delivering the judgment on Article 370 of the Constitution, Justice Sanjay Kishan Kaul of the Supreme Court of India also recommended the constitution of a truth and reconciliation commission to heal the wounds and suffering of the victims of the insurgency that gripped the Kashmir Valley, particularly in 1989-90.

Background of Article 370

• Article 370 was incorporated in the Indian Constitution in 1949 to grant special autonomous status to Jammu and Kashmir
• It restricted the Central government’s legislative powers over the state and allowed it to have a separate Constitution
• The article was considered a temporary provision, added to accommodate the special circumstances prevailing in J&K at the time of India’s independence
• Over the years, there were demands from various political parties and groups to fully integrate J&K with India by repealing Article 370

Abrogation of Article 370

• On August 5, 2019, the Central government issued a Presidential Order superseding the previous Order of 1954
• A Statutory Resolution recommending abrogation of Article 370 was passed by both houses of Parliament
• Another Presidential Order was issued declaring all clauses of Article 370 except clause 1 to be inoperative
• This effectively revoked the special status granted to Jammu and Kashmir under the Constitution
• Key Steps in Abrogation
  • Presidential Order CO 272 modified Article 367 to change the definition of ‘Constituent Assembly’
  • The state was under President’s Rule at the time, so powers of J&K Assembly were vested in Parliament
  • Rajya Sabha passed resolution under Article 370(3) recommending abrogation
  • Presidential Order CO 273 gave effect to this resolution, rendering Article 370 inoperative

Arguments of Petitioners

The petitioners challenging the abrogation of Article 370 raised several key arguments:

• Constituent Assembly’s Powers Usurped
  • Article 370 could only be amended or repealed by the Constituent Assembly of J&K
  • Centre usurped these powers by modifying Article 367 to redefine the Constituent Assembly
• Lack of State Government’s Concurrence
  • Concurrence of J&K government was necessary to amend Article 370
  • This was not obtained since J&K was under President’s Rule at the time
• Arbitrariness of Orders
  • The Presidential Orders were arbitrary, lacked reasoned decision making
  • Did not consider the will of the people of J&K
• Against Federalism
  • Unilateral application of entire Constitution to J&K went against spirit of federalism
  • Disrespected J&K’s autonomy guaranteed under Article 370
• Violation of Basic Structure
  • Abrogation altered basic federal structure of the Constitution which is part of basic structure
  • Power of Parliament to amend Constitution does not extend to basic structure

SC Verdict

The Supreme Court bench examined the issues raised by the petitioners but upheld the abrogation of Article 370. Some key aspects of the verdict:

• Article 370 was Temporary
  • Reiterated that Article 370 was only a temporary provision
  • Ceased to be operative as Constituent Assembly had dissolved
• Presidential Powers Intact
  • President had powers under Article 370(3) to declare Article 370 inoperative
  • Dissolution of Constituent Assembly did not affect this
• Concurrence of State Government Not Necessary
  • Concurrence of state government was not necessary during President’s Rule
  • Parliament was competent to exercise powers of state legislature
• No Arbitrariness in Orders
  • Presidential Orders were not arbitrary, but based on relevant considerations
  • Will of the people was not relevant to determine constitutional validity
• Federalism Not Affected
  • Unilateral application of Indian Constitution did not impinge on federalism
  • J&K did not have absolute sovereignty after accession to India
• Basic Structure Intact
  • Abrogation did not alter basic structure or violate any fundamental rights
  • Decision was taken constitutionally, so no violation of rule of law

Impacts

The abrogation of Article 370 and bifurcation of Jammu and Kashmir has had wide-ranging impacts on various aspects:

• Political
  • Mainstream political parties like National Conference and PDP sidelined
  • Space for dissent and opposition politics greatly reduced
  • Undermines India’s federal structure by excess centralization of power
• Social
  • Outsiders can now buy land and property in J&K leading to demographic changes
  • Raises fears about impact on local culture, language and way of life
• Economic
  • Expected boost to tourism, infrastructure building in J&K
  • Increased private investment due to reduced bureaucracy
• Security
  • Tensions with Pakistan heightened after revocation of special status
  • Clampdown by security forces led to human rights violations
  • Alienated local population, fueling further unrest

Criticism of Verdict

While the Supreme Court upheld the abrogation, the verdict has come under criticism on several grounds:

• Ignores Constituent Assembly’s Role
  • Failed to address fact that only Constituent Assembly could repeal Article 370
  • Allows executive to bypass constitutional procedures
• No Remedy for Human Rights Violations
  • Does not examine excesses committed during security crackdown
  • Leaves people with no recourse for rights violations
• Undermines Federalism
  • Disregards spirit of federalism and principles of shared sovereignty
  • Sets dangerous precedent for unilateral changes by Centre
• No Consideration of J&K’s Special Status
  • Does not consider why J&K acceded to India with special status
  • Fails to respect this solemn constitutional commitment
• Jeopardizes Peace Efforts
  • The decision could hamper prospects for lasting peace in Kashmir
  • May increase sense of alienation among local population

Way Forward

While the Supreme Court has settled the constitutional debate on Article 370 for now, the way forward on resolving the Kashmir issue involves:

• Holding Assembly elections in J&K at the earliest
• Restoring full statehood for J&K
• Addressing human rights violations through impartial probes
• Creating political reconciliation through dialogue
• Respecting the unique cultural identity of Kashmir
• Pursuing peace talks including Kashmiri voices
• Undertaking confidence building measures with Pakistan

Conclusion

The Supreme Court verdict on Article 370 marks the culmination of a long legal battle over the status of Jammu and Kashmir within the Indian Union. While the judgment has upheld the constitutional validity of the government’s decision, it remains to be seen whether it brings lasting peace and prosperity to the troubled region. Meaningful political reconciliation through fair democratic processes still remains key to resolving the complex Kashmir issue.